In the ARBITRATION between

Mr. L.L Appels
(Union/Applicant)

And

North West Department of Education (First Respondent)
Dr. A.D Abdool (Second Respondent)

Union/Applicant’s representative: Attorney; Mr. W.P Scholtz
Telephone: 018- 293 2822
Telefax: 018- 293 2847
E-mail:

First and Second Respondent’s representative: Ms. B.Phuswane-018-388 3384
Dr. A. D Abdool-In Person-083 227 5480
Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for arbitration on the 29th July 2019 and adjourned to the following dates namely the 22nd August 2019, the 26th September 2019, the 28th October 2019 and finalized on the 27th November 2019.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 4th December 2019. The First Respondent’s closing arguments were timeously received. The Applicant requested an extension for one additional day which was granted. My award now follows.

3. Mr. W.P Scholtz, an attorney, represented the Applicant.

4. Ms. B. Phuswane a Labour Relations official represented the First Respondent.

5. During the early part of the arbitration Dr. Abdool was represented by Mr. A.D De Beer from the Suid Afrikaans Onderwys Unie (SAOU). However, towards the end of the arbitration Dr. Abdool indicated that he would represent himself.

ISSUE IN DISPUTE

6. Whether the Respondent committed an unfair labour practice i.t.o section 186 (2)(a) of the Labour Relations Act, no 65 of 1995 (as amended) (LRA) related to promotion by failing to appoint the Applicant to the advertised Principal’s post at Alabama Secondary School.

BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS

7. The Applicant had been in the employ of the First Respondent since 1991 and is currently employed as a Departmental Head, PL 2, at Alabama Secondary School in the Klerksdorp district.
8. The First Respondent advertised a vacancy in respect of the Principal’s post, PL4, by means of Departmental Circular 5 of 2016.
9. The Applicant was shortlisted and recommended as the best candidate for appointment. The Second Respondent applied for the position in the initial recruitment process but was not shortlisted.
10. Subsequent to the recommendation that the Applicant be appointed into the position in question, the Chairperson of the School Governing Body (SGB) (Mrs. Appels) lodged a complaint which resulted in the First Respondent appointing an independent panel to re-do the entire recruitment process.
11. It is worth mentioning at this stage that the Applicant and the Chairperson of the SGB are blood relatives and apparently not on good terms with one another.
12. As a consequence of the re-shortlisting process, the Second Respondent was included in the list of previously shortlisted candidates.
13. The interviews in respect of the second recruitment process were conducted on the 16th August 2016 by the newly appointed panel.
14. The Second Respondent was recommended as the best candidate whilst the Applicant was recommended as the second best candidate.
15. Subsequent to the abovementioned recommendation, the then District Director (Dr. Motara) addressed correspondence to the Area Manager and the SGB submitting that the recommended candidate could not be appointed due to the fact that he held a temporary position. Re-advertisement of the position was recommended in the said letter.
16. The Second Respondent was permanently appointed to the Principal’s post at Alabama Secondary School on or about the 1st December 2016.

SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT

17. The Applicant testified under oath and the evidence of Mr. M. Canham (a member of the SGB) was additionally led.
18. The Applicant’s case revolved around the submissions that the recruitment process was fundamentally flawed and not only unfair but also unlawful. The Applicant referred to breaches of Clause 5.2 and Clause 6.10.6 of Circular 5 of 2016 which stated that the SGB must be involved in the shortlisting committee to short-list applicants for interviews and the interviewing committee should remain unaltered until all the interviews are completed.
19. The Applicant submitted that the mere appointment of an independent panel was contrary to Clause 5.2 as aforementioned.
20. Canham had testified that the SGB had not been involved in the second recruitment process insofar as the short-listing, interviewing and recommendation was concerned.
21. It was submitted that the chairperson of the independent panel, who recommended the appointment of the Second Respondent, never attended any of the shortlisting processes.
22. I was also referred to section 6 (3) of the Employment of Educators Act, no 76 of 1998 which states that “subject to paragraph (m),any appointment, promotion, or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school…”
23. The Applicant argued that there was no evidence to suggest that the SGB recommended the appointment of the second Respondent.
24. The Applicant also argued breaches of the latest amendments to the Personnel Administrative Measures (PAM).
25. The Applicant submitted that he was the most suitable candidate for the Principal’s post whilst the Second Respondent should have been excluded from the second process on the basis of his employment being temporary at the time.
26. The Applicant testified that he had 26 years of uninterrupted service at the school in question. Thus he had sound relationships with his colleagues and the community. He furthermore had extensive knowledge and experience of the day to day functions of the school as well as its procedures and the functioning thereof.
27. During the period from 2007-2008 the Applicant had acted as Deputy-Principal for a period of almost 2 years.
28. It was submitted that the Second Respondent is less suitable for the position due to the contention that he has substantially less experience insofar as Secondary School education is concerned. The Second Respondent had, in fact, spent a period of approximately 10 years of his career outside a Secondary School environment. As mentioned earlier at the time of the Second Respondent’s appointment he was employed as a PL1 educator on a temporary basis.
29. The Applicant referred to the community unrest which had occurred at the school which appeared to support the appointment of the Second Respondent as Principal. The Applicant submitted that Mrs. Appels was behind the drive to ensure the appointment of the Second Respondent instead of the Applicant.
30. It was also argued that the Area Manager, Mr Mogotsi, influenced the appointment of the Second Respondent.
31. It was submitted on behalf of the Applicant that he had a legitimate expectation to be appointed into the Principal’s post.
32. The Applicant argued to be awarded a protected promotion which would place him in the position he would have been had he not been subjected to an unfair labour practice and had he been appointed to the position in question. This would restore the difference in remuneration and benefits, with the inclusion of the difference in pension benefits, which the Applicant would have enjoyed for many years to come had he been appointed.

SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT

33. The Respondent led the evidence of two witnesses namely Dr. Mokobe (a member of the second interview panel) and the then Area Manager, Mr. S.S. Mogotsi.
34. Mogotsi testified inter alia, that he noted irregularities in the scoring of the first recruitment process, in that the Applicant was scored very highly and the other candidates were scored very low. He suspected bias in the scoring of the selection committee. He then wrote a letter to the District Director recommending that an independent panel be appointed. It was on this basis that the first process was nullified and the second process came in.
35. Mogotsi testified further that the letter he wrote was in fact demanded by the protesters who wanted the Second Respondent appointed. These protesters consisted of SGB members of the school, parents and members of the community. The protesters to the Applicant’s appointment had demanded that Mogotsi write a letter as confirmation that a meeting with them had indeed taken place.
36. Phuswane argued that the Applicant’s assertion that Mogotsi influenced the MEC to appoint the Second Respondent was incorrect in that it was the HOD who made the appointment and not the MEC. The MEC was a political appointment.
37. Phuswane also argued that there is no law that prevents a temporary educator from being promoted into a permanent position as long as he met the recruitment criteria. The Second Respondent had indeed met those criteria.
38. The issue of the promotion of temporary educators was corrected by the Chief Director of Human resources in an extended meeting dated the 24th November 2016.
39. Phuswane argued that the Applicant did not provide supporting evidence that the Second Respondent was added to the list of candidates in the second recruitment process.
40. Mokobe testified, inter alia, that as a member of the short-listing panel, five people were shortlisted for the second short-listing process and this included the Second Respondent.
41. Mogotsi had also testified that the SGB were consulted and approved the scores given to the Second Respondent. They also submitted a motivation for the appointment of the Second Respondent.
42. Dr. Mokobe testified that during the shortlisting and interview of the second process the SGB were represented. He further submitted that about seven members of the SGB were present; however, those who had a vested interest in the process recused themselves.
43. Phuswane argued that it was strange that the SGB had not lodged a dispute about the way they were consulted. Canham could not purport to speak for the SGB as a collective as his letter, by his own admission, was written in his personal capacity.
44. Phuswane argued that the different make-up of the second recruitment process was justified since the first process had been finalized and there was no obligation to have the same people participate for a different process.
45. Phuswane argued that the Applicant had not discharged the onus of proving that he was the best candidate for the position. The academic qualifications of the Second Respondent were unmatched by the Applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT

46. It is obvious from the closing arguments of the Applicant that he is not trying to enforce the decision of the first recruitment process. Indeed he cannot because the HOD did not affect an appointment and it is beyond the jurisdiction of a Panelist to order the First Respondent to make an appointment where none was made in the first place. The focus of attention will thus fall on the fairness/lawfulness of the appointment made in the second recruitment process.
47. The law referred to by the Applicant’s legal representative is the law that applies in ordinary recruitment circumstances not extraordinary circumstances. The normal functionality of the SGB must also be considered.
48. I accept Mogotsi’s evidence that he detected bias in the manner in which the scoring took place in the first process.
49. There are other factors which appear to have received less attention in this case but must have or ought to have influenced the decision to appoint an independent panel. The aspect relates to nepotism. The Applicant sought to be appointed Principal at the school and the relative with whom he did not have a good relationship (Mrs. Appels) was Chairperson of the SGB.
50. It is clear from the testimony of Canham and the general testimony of the First Respondent’s witnesses that there were two factions within the SGB. The manner in which the Applicant was scored in the first process suggests that he had his supporters. Clearly, Mrs. Appels and others, including community members, were clear supporters of the Second Respondent.
51. The inability of the SGB to function as a unified unit obviously concerned the First Respondent together with the spectre of nepotism and other elements of dysfunction.
52. I find that the First Respondent rightly could not trust the SGB to be left to their own devices when it came to the appointment of the very important position of the Principal of the school
53. The subordinate legislation and even the Employment of Educators Act details what must the SGB must do in normal ordinary circumstances but is deathly quiet on what must happen in the case of disorder and dysfunction.
54. In a similar case which I dealt with recently in the Northern Cape the 1st Respondent’s appeal to higher constitutional imperatives of acting in the best interests of the child was utilized to justify the appointment of an independent panel in the absence of other enabling legislation.
55. The Constitutional Court decision contained in In the Governing Body of Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) and its interpretation of section 28 (2) of the Constitution of South Africa indeed imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of a child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner which favors protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives.
56. I find that the unenviable duty has fallen upon me to develop the common law when the 1st Respondent finds itself confronted with the untenable situation of having to deal with a dysfunctional and/or an ineffective SGB. When posts are advertised recruitment processes must be commenced and finalized with the necessary speed to ensure that the school infrastructure of educating learners continues to function optimally. This is in the best interests of the children attending that school. Independent panels must be convened as a last resort to conduct recruit processes and every attempt must be made to maintain impartiality in subsequent decision making.
57. The provisions of section 22 (1) of the Schools Act no 84 of 1996 (SA) permit the Head of Department to withdraw the function of a governing body on reasonable grounds. The provisions of section 22 (1) and (2) of the SA must be read together with the decision contained in the Essay case.
58. I accordingly find that the appointment of the independent panel to expedite the recruitment of a new principal for the school in this case was justified and thus procedurally fair. It is in the best interests of children and staff that PL 4 appointments are made quickly so that proper leadership and management from the top are maintained. Dysfunction of the SGB and perceived nepotism can never serve the children well.
59. I find that the First Respondent made every effort to keep the SGB informed of its short-listed candidates despite the appointment of an independent panel. The SGB was by no means side-lined in the process.
60. I turn now to the substantive fairness of the 2nd Respondent’s appointment as Principal at the school.
61. The Applicant’s main argument is that he has far more teaching experience than the 2nd Respondent and thus, on this basis alone, he should have been appointed to the position. It is common cause that the Second Respondent has a far more impressive academic record than that of the Applicant.
62. Whilst educator experience is important in considering an appointment it is by no means the decisive factor. The Applicant, incorrectly with respect, appeared to be believe he had a right to be appointed based purely on his years of experience. It is trite law that employees have no right to promotion but to be fairly considered for promotion when a vacancy arises.
63. In the matter of Public Service Association of South Africa on behalf of Helberg v Minister of Safety and Security and another (2004) 25 ILJ 2373 (LC) at para 12 the court held that the employer should appoint the best candidate when selecting suitable candidates for promotion.
64. It is common cause that the Second Respondent was shortlisted by the independent panel and was found to be the best candidate. I have already found that the process of shortlisting the Second Respondent by the independent panel was not procedurally unfair from a constitutional perspective and with reference to section 22 (1) and (2) of the SA.
65. Aside from scoring the Second Respondent the highest there can be no doubt that the appointment of the Applicant must have raised various concerns in the mind of the independent panel. Had the Applicant been appointed it would have created the perception of nepotism in the minds of the other educators, parents and the broader community. I believe it was important to make an appointment that was free of any taint and criticism. In short a totally independent person needed to be appointed to the school’s highest position.
66. I find that no law prohibits the appointment of a temporary educator into a permanent position. Whist this does obviously not happen often in practice, extraordinary considerations were required in this particular recruitment process.
67. The Applicant tacitly concedes that the appointment of the Second Respondent is in order by seeking the relief of a protected promotion which will effectively keep the Second Respondent in his position but result in the First Respondent paying twice for one position. The Applicant raises no concerns about the Second Respondent’s performance some three years after the appointment was made.
68. I find that the lapse of time has confirmed that the correct decision was made in appointing the Second Respondent as principal of Alabama Secondary School.
69. I also find that the 1st Respondent did not act frivolously, capriciously or unreasonably in appointing the 2nd Respondent. Due process was followed. As such I have no basis to interfere with the decision of the independent recruitment panel appointed by the 1st Respondent.

AWARD

70. The Applicant’s dispute referral is dismissed.
71. No order as to costs was requested or made.